NZ: Editorial: Court must be opened to scrutiny
From http://www.nzherald.co.nz/storydisplay.cfm?storyID=3556959&thesection=news&thesubsection=general
Editorial: Court must be opened to scrutiny
26.03.2004
The High Court pulled no punches in ruling that National MP Nick Smith was in contempt for publicising details of a Family Court case. "The intemperate, derogatory and unfair remarks Dr Smith made ... assault the authority and integrity of the Family Court and the fairness and legitimacy of its decision," it said.
In any circumstance, such language equates to the severest of reprimands. In this instance, it serves as the strongest of warnings to politicians, and others, who choose to intrude upon the secret world of Family Court proceedings.
The ruling's scathing tone is particular noteworthy, given the embattled position of the Family Court. The High Court ruled that Dr Smith had undermined public confidence in it. Yet the very nature of the Family Court has sown seeds of doubt. Restrictions on reporting cases mean its judges have never been subjected to public scrutiny, or accountability. This has laid the court open to accusations of bias, particularly against fathers in child-custody cases.
The folly of such secrecy is now, thankfully, being recognised. This month, the Law Commission recommended that the media should be able to attend the Family Court and should be free, subject to certain restrictions, to report proceedings.
Such openness, indeed, is essential if people are ever to have the wherewithal to reach their own judgment about Dr Smith. It is now necessary for the public to be privy to the details of this case, so they can decide whether his action was justifiable, or merely well-intentioned. The difference is important.
What seems clear is that he was ill-advised to telephone the woman who had been given temporary custody of a Nelson couple's child. No matter how well-intentioned his wish to help constituents, he had no right to attempt to influence Family Court events - or to "usurp" the court's role by making his own inquiries into the case. Most scathingly, of course, the High Court believed the caregiver's evidence about the content and tone of that telephone call, rather than the MP's.
The court did not accept Dr Smith's defence that he was pursuing what he saw as his duties as a parliamentarian, and was acting in the public interest. The public, however, will provide the ultimate verdict on his behaviour. That should be delivered at the next general election, not a byelection, no matter how welcome the prospect of such a contest might be to a National Party on the rise.
The High Court ruling does not necessitate a byelection. Under electoral law, an MP found guilty of a crime punishable by two years or more imprisonment must be removed from Parliament. But the common law offence of contempt of court is not a "crime", and, because it is not in the statute books, carries no maximum sentence. There is no need, therefore, for the country to be put to the expense of a byelection. The public verdict can, quite reasonably, be postponed.
As a riposte to the High Court, the unrepentant Dr Smith, and other National MPs, have portrayed the ruling as a challenge to Parliament's authority, and a blow for free speech. Such sentiment is grossly overstated. Dr Smith was acting as an individual MP outside the realm of parliamentary privilege. In no way has the authority of Parliament, as an institution, been challenged. And if freedom of speech is a factor, it is only in so far as the problems associated with courtroom secrecy have again been highlighted.
The harsh tone of the High Court ruling, and the equally strong response, speak volumes of the emotionally charged nature of the Family Court. If there is solace for Dr Smith, it is that he is undoubtedly right in one respect: opening the court to public scrutiny can be delayed no longer.
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